Last week, Oklahoma judges considered a fundamental question - the status of international law in state courts in the U.S. And they made a paradigm-shifting decision.

Not only did they properly treat a U.S. treaty as binding law, they also relied on a March decision of the International Court of Justice (ICJ) in The Hague. (The ICJ, the U.N.'s highest tribunal, is also often referred to as the World Court.) The result was to halt an execution that would have taken place May 18--the execution of Mexican national Osbaldo Torres, whose right to assistance from the Mexican consulate was not honored by the U.S.

Torres's case is important because it illustrates the increasing recognition that international law is enforceable in the United States. It is also important because it brings into sharp focus how the U.S.'s actions against non-citizens at home can have a potentially major effect on the treatment of Americans overseas, and on our global image.

Even as the Abu Ghraib prison photos tarnish the U.S.'s image abroad, the Oklahoma decision is a candle in the darkness, showing the U.S.'s ability to respect international law and the rights of non-citizens.

Background: International Court of Justice Holdings on Vienna Convention Rights

To explain how the Oklahoma court reached the decision it did, it is necessary first to go over some background.

In 2001, in the LaGrand Case, the ICJ held that two German nationals sentenced to death in the United States had the right to be informed of their right of access to their consulate. The right, the ICJ noted, was established by the Vienna Convention on Consular Relations (VCCR), which the U.S. has ratified.

By the time of the decision, the German citizens had already been executed. Accordingly, the ICJ found the United States in breach of its treaty obligations and ordered the State Department to devise a remedy consistent with U.S. law. It noted specifically that the U.S.'s apology for failing to inform the Germans of their rights was hardly a sufficient remedy.

Subsequently, another Vienna Convention case came before the ICJ. In the Avena litigation, 52 Mexican nationals - including Mr. Osbaldo Torres -- alleged that the U.S. had failed to inform them of their right to consular access. At its core, Avena points out the fundamental unfairness of putting someone on death row who should have been given due process, but wasn't. The difference between being a foreign citizen alone, and one with consular help, can literally make the difference between life and death.

But despite the force of this argument, Torres had no luck presenting a similar claim before the U.S. Supreme Court. As I discussed in an earlier column, in November 2003, the Court declined to hear his case.

On March 31 of this year, the ICJ issued a decision upholding the claims of Torres and the other foreign nationals in the same situation. As a result, the ICJ ordered the U.S. to provide "by means of its own choosing meaningful review of the conviction and sentence" of the Mexicans. What counted as "meaningful review"? The presiding judges said that generally, the normal appeals process in the U.S. would suffice.

However, for three men who had already exhausted their appeals, the ICJ said the United States should make an exception and review their cases one last time. One of the three men whose cases the Court ordered specially reviewed was Torres.

Developments in the Torres Case: Oklahoma Institutions Respect International Law

On May 7, less than two weeks before Torres was scheduled to be executed, Mexico asked the Oklahoma Pardon and Parole Board to recommend to Governor Brad Henry that Torres' sentence be reduced to life imprisonment. The Board, by a 3-2 vote, did so.

The Board's members found that the VCCR violation undermined the state's charges against Torres. They found the ICJ's ruling helpful on two issues: Did the U.S. ignore its obligations? The ICJ answered yes, and so did the Board. And if it did, should someone be executed because of the U.S.'s failure? The ICJ answered no, and so did the Board.

On May 10, at a convention of lawyers and judges in Chicago, Supreme Court Justice John Paul Stevens, who had written a stinging dissent in the Court's refusal to hear Torres' appeal in November, stated that the U.S. would be better off if we did not have capital punishment. He said that he would feel "much, much better" if more states would consider deeply whether the benefits of executions outweigh the "very serious potential injustice," as the stakes are very high, and there is the "special potential" for error.

On May 13, the Oklahoma Court of Criminal Appeals granted an indefinite stay of Torres' execution, saying that his conviction may have violated international law. The Court requested an evidentiary hearing on whether Oklahoma violated the VCCR by failing to give Torres access to the Mexican consulate after arrest.

In his concurrence, Judge Charles S. Chapel said the court was obligated to comply with the ICJ's ruling, given the United States' treaty obligations, and suggested that Torres's trial might have come out differently had the Mexican government been informed of his arrest, and been able to provide him with assistance.

Less than a day later, Governor Henry granted the clemency request in part because of the ICJ's ruling. In his public statement, the Governor said the ICJ ruling is binding on U.S. courts.

He also recognized that what goes around, comes around. In the Avena hearings in December, lawyers for Mexico argued that any U.S. citizen accused of a serious crime abroad would want the same right. Echoing that argument, Governor Henry stated "the [Vienna Convention] treaty is important to protecting the rights of Americans abroad." If foreigners in the U.S. may be denied consular aid and executed, then so may Americans abroad, someday.

It was the first time Governor Henry had granted clemency to any individual on Oklahoma's death row; and even when the Parole Board had recommended clemency, in three other cases, the Governor had ignored it. His decision with respect to Torres was courageous because a large sector of Oklahoma voters favors the death penalty.

Will Other States - and the U.S. Supreme Court - Follow Oklahoma's Lead?

In my earlier column on Torres's claims, I argued that by declining review, the U.S. Supreme Court turned a blind eye to the United States' repeated violations of its obligations under the VCCR, and in so doing, refused to enforce U.S. law. (Under the U.S. Constitution, treaties, once ratified, are part of U.S. law.)

Now, we have a strange situation. The Oklahoma state court system, the state parole board, and the Governor, are way ahead of the U.S. Supreme Court when it comes to recognizing and enforcing the U.S.'s international legal obligations, and respecting decisions of the ICJ.

The people of Oklahoma, too, seem to appreciate how their actions play out overseas, and see the links between our treatment of prisoners here and our treatment of prisoners - and our image -- abroad. One Oklahoma newspaper's editorial page described how "the specter of Torres' execution additionally triggered protests at the state capital and increasingly widespread and hostile international news reporting."

Other states should follow Oklahoma's lead - and so should the federal government. Torres's case should - and may well - be seen as a turning point in the way the U.S. treats both foreign citizens, and international law.

Torres's Case As a Turning Point: Recognizing Treaties as U.S. Law

In November 2003, before any of the Abu Ghraib photos surfaced, I warned that the U.S. is wrong to believe that its conduct won't come back to haunt it -- whether it's arming Osama bin Laden years ago, supporting Saddam years ago, or violating non-citizens' (and some citizens') rights both years ago, and today.

Now, with the release of the horrifying photos of prisoner abuse in Abu Ghraib, and the international outcry, we know that our conduct can haunt us and harm us. Already, Americans were often seen by the world as violent, barbarous and arrogant; after the photos, we will be seen in a far worse light. But at least some of our political leaders now seem to realize that they need to work fast to repair our image around the world.

For instance, look at the expedited court martial of Spec. Jeremy Sivits, who was involved in the Iraqi prisoner abuse scandal. Sivits received the maximum sentence. And tellingly, the Coalition Provisional Authority spokesman said Sivits' court-martial was an important showcase to Iraqis and the rest of the world of "American democracy, American justice, American accountability at work."

Even Defense Secretary Donald Rumsfeld seems to be turning over a new leaf. After ignoring the Geneva Conventions for the past two years, Secretary Rumsfeld has now conceded that they apply may to prisoners held in Iraq. And President Bush has decided that any al-Qaida or Taliban personnel taken prisoner are now to be treated consistent with the Geneva Conventions.

This is a dramatic reversal from the Bush Administration's constant denial of prisoner of war status to so many at Guantanamo Bay, precisely to ensure that the Geneva Conventions do not apply.

It is still not enough - the Administration continues to deprive U.S. citizens (Jose Padilla and Yaser Hamdi) and noncitizens (the detainees) alike of crucial rights, and to defend its position all the way up to the U.S. Supreme Court. But perhaps it is a start.

Convincing The World We Respect Human Rights Even After Abu Ghraib

America is a more just country than the photos from Abu Ghraib suggest. But how can we prove that?

One way would be for the U.S. to immediately review the cases of everyone else in the same situation as Osbaldo Torres - that is, every foreign national on any death rows around the country who has raised a Vienna Convention claim. According to recent research, there are at least 119 such people. Almost half of these cases are Mexican nationals like Torres, and the rest come from 30 other countries.

This review would comply with the ICJ's decision in Avena. And it would also go further - respecting the general principle Avena set forth, by applying it to every case with the same type of claim.

Much of the world now understandably doubts that the U.S. cares at all about the rights of anyone who is not a U.S. citizen. We must prove that we do care. Reviewing these cases before the ICJ further prods us to do so would be a good start.

In the Geneva Conventions, and the Vienna Convention, the U.S. has agreed to provide basic due process rights to non-citizens. The Bush administration must honor these promises, as Oklahoma has done, or it risks being seen as a creature not of law, but of pure untrammeled power.

The Bush administration must honor these promises, as Oklahoma has done, or it risks being seen as a creature not of law, but of pure untrammeled power.

Amazing juxtaposition here by the writer. To this nimrod, adherence to the United States Constitution, a document based upon the will of the people and maintained by constitutionally-elected officials (albeit somewhat badly at times), is a creature of "pure untrammeled power" - whereas adherence to the rulings of an international court which is accountable to no one is a creature of law.

My response to this one is really conflicted. Frankly, I don't give a flip about the ICJ's ruling in and of itself. Their rulings are not superior to US law or the US Supreme Court. However, in this case we have a situation where -- it would appear -- there is a matter of US law and treaty obligation in play.

In 1963 the United States DID ratify the Vienna Convention on Consular Relations (VCCR), and in that Convention the United States did, indeed, affirm the right of foreign nationals to legal assistance from their nation's Consulates. The operative article reads:

(i) subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests;

This treaty DOES place upon the US Judicial System the obligation of ensuring that foreign nationals, who are accused of a crime in the United States, be allowed to receive legal aid from their nation's consulate. The United States demands that this Convention be observed for our own citizens who are arrested and charged with crimes in foreign countries; we should, therefore, abide by our own treaty obligations as well. This is NOT about applying foreign laws or court ruling to the US judicial system. It is about us abiding by OUR OWN laws. This Convention does not, in any way, say that the laws of another country should apply within the US; rather, our signing the Convention means that just as our citizens have the right to contact our consulates for legal assistance, so also foreign nationals have the right to ask their consulate's for legal assistance when appearing before US courts. It is probably true that the outcome of most of these cases would NOT have been change had the defendant been informed of, and allowed to exercise, their treaty-right to request assistance from their nation's consulate, but the definition of due process includes access to this treaty-right.

I am VERY OPPOSED to the liberal idea that the USSC is under the jurisdiction of the ICJ; but I am VERY CLEAR on demanding that the United States abide by its OWN laws and uphold its own treaty obligations. As someone who has worked overseas for months at a time, this treaty protects US as much, or more, than it protects THEM.

This illegal immigrant entered this country in the dark of night, and did commit murder most foul. This treaty the ICJ cites covers persons who have valid visas and passports, not those who have snuck in. He had no plans to return to Mexico. He was trying to stay here illegaly. He is not Mexican. He is a stateless person.

Who protects the US citizens from animals like him? The SCOTUS said the law of this country does. The ICJ has effectively said it does not. The ICJ can bite me.

My question would be, "Was Torres here legally or illegally?"If legally then we give him consular access.If illegally, try him as a spy and put him before the firing squad if found guilty.If found not guilty of spying, give him consular access, try him, and if found guilty, execute his a$$.

8
posted on 05/25/2004 12:34:15 PM PDT
by Just another Joe
(Warning: FReeping can be addictive and helpful to your mental health)

This illegal immigrant entered this country in the dark of night, and did commit murder most foul. This treaty the ICJ cites covers persons who have valid visas and passports, not those who have snuck in. He had no plans to return to Mexico. He was trying to stay here illegaly. He is not Mexican. He is a stateless person.

You are correct in that this scum is a murdering monster and merits death. As I wrote earlier, his having access to his consular rights would not have made any difference in the outcome of the case. Just because he is an illegal alien doesn't mean that we are free to do whatever we please; it is STILL proper for us to observe and uphold our treaty obligations based on PRINCIPLE, not the specifics of any one case. We are a FAR better country than any other when it comes to human rights.

I wish the guy would fry; had we done our job right and provided him with his consular rights TO BEGIN WITH, there is a VERY good chance he would have been convicted and sentenced to death ANYWAY ... and, hence, rather than having the current situation, he would be on his way to the chair (or whatever they use in OK).

Who protects the US citizens from animals like him? The SCOTUS said the law of this country does. The ICJ has effectively said it does not. The ICJ can bite me.

You're going over board, here. Even this particular treaty recognizes that the laws of the country in which the crime occured are the laws which prevail. ALL this treaty does is ensure that foreign nationals have consular rights. Had we done the right thing in his case, and ensured those rights, his death penalty would still be in place. But, no, because we failed our Judicial System has a resulting taint on it that must be addressed.

I'll have to take your word for it that the VCCR does indeed require that consular access be given in these cases, even though I can't really make heads or tails out of the passage you quoted (it doesn't even look like a complete sentence). I don't see any reason to doubt it.

So having said that, I agree in principle with everything you say. I posted the barf alert because it's an EXTREMELY huge jump to go from saying (correctly) that treaties are the supreme law of the land, to saying that foreign courts have binding power to interpret said law. This is exactly the sort of thing that globocrats will point to as precedent when they decide to edge things a little bit further. And unless we get the word out about this as far and wide as possible, this "precedent" will sneak up on us unannounced, too late to do anything about it, as is very often the case with experiments on our liberties. They start out as minor news, because they're first used in obscure cases, then they make themselves comfortable, and then all of the sudden they metastasize into something very ugly before we know it.

12
posted on 05/25/2004 3:45:07 PM PDT
by inquest
(The only problem with partisanship is that it leads to bipartisanship)

A similar outrage, from federal justices, could be prevented by the passage of H. R. 3799, in the House of Representatives, and/or S 2082, in the Senate. One portion of these bills specifically prohibits federal justices from basing their decisions on the laws of other nations. In addition, these bills would also remove the jurisdiction of the federal courts, including the Supreme Court, to review cases involving the acknowledgment of our Creator as the sovereign source of law, liberty, or government. The net effect is the acknowledgment that our Creator is the original law giver, and our constitution defines to means by which we will implement these laws; without regard to the United Nations.

A bill pending in both houses of Congress, the "Constitution Restoration Act," would prohibit federal courts from ruling in cases involving government officials who acknowledge God "as the sovereign source of law, liberty or government."

Roy Moore (Photo: WSFA.com)

The bill, sponsored in the House by Rep Robert Aderholt, R-Ala., and in the Senate by Sen Richard Shelby, R-Ala., was birthed in the aftermath of the ouster of former Alabama Chief Justice Roy Moore, who was sanctioned by the courts for acknowledging God by way of a Ten Commandments monument in the state's judicial building. Moore was on hand in Washington when the bills were introduced last month.

Supporters of the bill cite Article III, Section 2 of the U.S. Constitution, which authorizes Congress to limit the jurisdiction of the U.S. Supreme Court and other federal courts.

It reads in part: " the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

The House version, H.R. 3799, and Senate version, S. 2082, are identical companion bills. Touted by some supporters as one of the most important pieces of legislation in U.S. history, the bill states:

The Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official personal capacity), by reason of that element's or officer's acknowledgement of God as the sovereign source of law, liberty, or government.

The legislation also addresses what many high-court watchers consider a dangerous trend: Supreme Court justices looking to foreign law and rulings for guidance when deciding cases. States the bill:

In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than the constitutional law and English common law.

Under the bill, any judge who violates the proposed rule by making "extrajurisdictional" decisions will have committed an offense that is grounds for impeachment.

Supporters of the legislation point to the many cases recently that have sought to purge any mention of God from the public square. Along with Moore's case, they cite the Pledge of Allegiance case, which was argued before the high court last week, nativity scenes being banned from public property and schools, and cases limiting prayer at public-school gatherings.

"On its surface, [the] bill would merely forbid the federal courts from reviewing state court decisions that end up allowing a public acknowledgment of God. How is that possible? Read Article III of the Constitution  it describes exactly what authority the federal courts have. Their area of responsibility is to be regulated and controlled by Congress. Since the federal courts now seem to think they're God, clearly some trimming of their responsibility is in order."

Columnist James Heflin shudders at the thought of such a bill becoming law.

Wrote Heflin last week: " If [the bill's] backers get their way, Americans will no longer receive the same protections that Washington has carefully insisted that Iraqis have. The restricting of Supreme Court jurisdiction is a strange maneuver, but one which the hazy language of the relevant part of the Constitution may allow. The act would disallow the Supreme Court from referencing any source other than the Constitution or English common law in its decisions. It would retroactively exempt from Supreme Court jurisdiction cases such as Roy Moore's. A judge who attempted to rule in such cases could be impeached. It is unclear exactly what actions a public servant could get away with under the banner of invoking God as the source of law.

"If the act passes, Iraqis would have stronger protection from religious extremism than Americans. It's a change with dramatic consequences, and our political landscape under Bush is ever more receptive to such ideas. Roy Moore and his fundamentalist brothers and sisters have far more in mind."

Disclaimer:
Opinions posted on Free Republic are those of the individual
posters and do not necessarily represent the opinion of Free Republic or its
management. All materials posted herein are protected by copyright law and the
exemption for fair use of copyrighted works.